Is attorney-client privilege for email communications the same for government entities as it is for private litigants? The court reviews this eDiscovery dispute in Burkhead & Scott, Inc. v. City of Hopkinsville Solid Waste Authority, Case No. 5:12-CV-198-GNS (W.D.Ken. Dec. 19, 2014).
The first set of email under scrutiny concerned whether privilege was waived when two individuals listed as recipients were independent contractors of Defendant, a government entity. The court accepted Defendant’s claim that these two individuals were acting as employees, not third-party independent contractors, and therefore privileged was not waived. However, Plaintiffs did not have this information before the hearing, and the court granted Plaintiffs leave to file a motion to compel to dispute this finding, if necessary, after additional discovery is tendered concerning the work status of these two people.
The next set of emails in dispute concerned threads that included lawyers for the Defendant-government. The court pointed out that not all email communications between government entities and attorneys are privileged. The difference is when attorneys act as governmental policymakers, these communications do not fall under the privilege protection. If the communications are for the purpose of developing policy and not seeking or offering legal advice, privilege does not apply.
Therefore, the court separated emails that gave no indication the attorneys were being included for anything other than policy advice. The attorneys in this set of emails did not respond, which was not dispositive, but telling, that the emails were not about legal advice. The remaining emails in dispute included discussions from the lawyers involved in the litigation at a time when the Defendant was aware of the threat of litigation. Such emails were protected by attorney-client privilege, as in this situation the court treated the Defendant-government just like any other private litigant.